WHAT IS MEDIATION
Mediation is a method of dispute resolution in terms of which parties are brought together in a flexible process facilitated and assisted by a neutral dispute resolution practitioner, the mediator. The mediator assists the parties in identifying the issues in dispute, developing options and considering alternatives with a view to reaching settlement if not of the entire dispute, then at least curtailing the issues in dispute.
There are various mediation styles including transformative which aims at restoring and/or improving the relationship between the parties, facilitative which is aimed at assisting the parties to negotiate an agreed outcome and evaluative where the mediator plays a more active role in the substance of the matter.
Central to mediation is the fact that the parties themselves drive the process. The mediator facilitates meaningful and fruitful dialogue between the parties with a view to reaching settlement of either the entire dispute or by curtailing the issues in dispute.
KEY ELEMENTS OF MEDIATION
FAST TRACKING THE SETTLEMENT PROCESS
Our court system is and has been in a state of crisis for some time now. Attorneys are having to jump through hoops to reach the steps of court and once there, the allocation of a judge is dependent on availability. Our cluttered court rolls regularly result in postponements at court as the number of matters on the court roll significantly exceeds the number of available judges on any given day.
Internationally, mediation has shown itself to be a quick and successful method of achieving access to justice outside of the court room. With more and more pressure from our courts, we anticipate that mediation shall begin to feature prominently in the coming years.
VOLUNTARINESS
While not always voluntary in its initiation, its continuation and success is founded on a will by both parties to curtail costs and to genuinely attempt settlement.
Parties can be compelled by a contractual obligation or in recent times there is even a possibility of court ordered mediation.
An order for mediation was recently handed down in the Gauteng Division of the High Court with an alternative that the defendant provide reasons for its refusal to refer.
The success of the process however depends largely on the will of the parties to embrace the mediation process.
CONTROL
The mediator manages the mediation process. The pivotal element of control derives from the mediator’s decision to engage the parties jointly or separately and to utilize both joint and side meetings in order to achieve meaningful and constructive engagement.
The mediator has no control over the outcome of the proceedings. While she controls the process, the parties determine the issues raised for discussion as well as the outcome of the mediation.
CONFIDENTIALITY
Privacy is central to mediation. The process enables parties to communicate confidentially with the mediator in private meetings. The mediator is not entitled to relay information obtained during these side meetings without the consent of the party providing such information. The process is held in private and conducted in confidence.
NEUTRALITY OF THE MEDIATOR
The mediator is required to be impartial, neutral and independent of the parties. Equal attention is given to each party and specialist skill is utilized to assist the parties in their negotiation. It is to be highlighted that the mediator has no decision making power. Unless she adopts an evaluative mediation style, she does not express views on the merits of the case nor is it her place to suggest outcomes.
WITHOUT PREJUDICE
Mediation is conducted on a without prejudice basis. It is utilized as a dispute resolution strategy without the parties losing their rights to resort to court for relief.
FLEXIBILITY
While there is a structured process in which a mediation operates, the parties decide on the subject content of the mediation, who attends, where and when the mediation shall take place and also on its outcome. The process is structured yet without the formalities of a court trial.
COSTS
A mediation is significantly cheaper than a court trial and can be curtailed further by the length of the mediation process.
The length of time spent discussing the dispute is hugely curtailed by the absence of court formalities and procedures.
RAF MEDIATION
The cluttering of South Africa’s court rolls is predominantly an RAF problem. The RAF has for many years now embraced a culture of litigation. This culture has resulted in an “us versus them” atmosphere which has proven to be hugely detrimental to both accident victim and the Fund.
The RAF has historically footed the bill for astronomical legal fees while the accident victim is caught up in a quagmire of impractical and expensive litigation.
The RAF has in recent times, noted its intention to mediate claims with a view to expediting finalisation. This is fantastic news for both the claimant and the organisation.
FAMILY LAW MEDIATION
Family law disputes are unpleasant for all involved. By the time the parties have sought legal advice from their respective attorneys, there is almost always an element of animosity in their interaction.
The children of divorcing parents often suffer the most. It is traumatic enough for children to face the split of their parents but a protracted battle over parental rights and responsibilities or maintenance compounds this trauma. It is seldom a walk in the park for Mom or Dad either.
Mediation is a versatile tool in the family law space. It is often utilized to resolve the financial disputes arising from a divorce or to facilitate practical resolution of disputes regarding primary residency and care of minor children.
The cost saving of such mediations benefit all parties.
MEDICAL OR CLINICAL NEGLIGENCE
The incidence of medical and clinical negligence actions in South Africa has soared over the last decade, this in both the private and the public sector. Such an action is stressful and financially draining to both plaintiff and defendant.
Again, with the limited access to our courts, there can be little doubt of the enormous benefits of mediation for both or all parties involved.
MEDIATION AND RULE 41A
The operation of this Rule holds exciting times for conflict resolution in South Africa. The operation of the rule from 9 March 2020 entrenches mediation as a formal concept both in and outside of the litigation process. Below is a brief explanation regarding the operation of Rule 41A.
MEDIATION UNDER RULE 41A IS DEFINED AS A VOLUNTARY PROCESS
Rule 41A(2)(a) requires a plaintiff/applicant when issuing summons or motions to serve on the defendant or defendants a notice indicating whether the plaintiff agrees to or opposes referral of the dispute to mediation.
Rule 41A(2)(b) states that a defendant or respondent shall when delivering an appearance to defend, or at any time later but not later than the delivery of a plea/opposing affidavit serve a notice indicating whether it agrees to or opposes referral to mediation.
Rule 41A(2)(c) requires both of the above mentioned notices to clearly and concisely indicate the reasons for each such party’s belief that the dispute is or is not capable of being mediated. These notices are without prejudice and should not be filed at court.
We find this to be a constructive step towards promoting early and meaningful engagement between the parties. Further, the requirement to serve such a notice is peremptory rather than optional.
Rule 41A(3)(a) holds that parties can at any stage before judgment, agree to refer a matter to mediation, provided however that if the trial or application has started this can only be done with leave of the court. This means that the stage at which mediation can be utilized is pretty limitless.
Rule 41A(3)(b) states that a judge or Judicial Management judge may direct that the parties consider referral to mediation whereupon parties may agree.
It is noted that the provision empowers the judge to issue an instruction to consider mediation rather than order mediation itself.
With the costs risk associated with a refusal, we believe this to an exceptionally strong provision.
WHAT HAPPENS WHEN THE PARTIES HAVE DECIDED TO REFER A DISPUTE FOR MEDIATION
Rule 41A(4)(a) requires the parties deliver a joint signed minute recording their election and the (b) subsection requires them to enter into an agreement to mediate.
Rule 41A(4)(c) provides that time limits for pleadings and notices shall be suspended for every party to the dispute from date of signature to conclusion of the mediation. Any party who considers that the suspension is being abused can apply to have it uplifted.
There is little doubt that there shall be attempts to abuse the court process and that notices calling for mediation shall be utilized as a dilatory tactic. In anticipation of this, the court has afforded us Rule 41A(4)(c) thus providing a remedy to such dilatory tactics.
A time limit has also been set out in the (d) subsection of sub-rule (4) requiring the mediation process to be concluded within 30 days of signature of the joint minute.
WHAT IF SOME PARTIES TO THE ACTION WISH TO MEDIATE AND OTHERS NOT
Rule 41A(5)(a) provides that where there are multiple parties to an action and some are agreeable to mediation while others not, the parties agreeable may proceed notwithstanding any other party’s refusal to mediate.
Again, time limits for delivery of pleadings and notices shall be suspended for every party from date of signature of the joint minute until conclusion of the mediation. The same relief here is afforded to parties who feel that the process is being abused.
It is important to note that parties can agree to refer some issues to mediation and allow other remaining issues to proceed to litigation.
DISCOVERY AND THE NOTICE CONFIRMING CONCLUSION OF MEDIATION
Except as provided by law or discoverable in terms of the Rules or agreed, all communications and disclosures, oral or written made at mediation shall be confidential and inadmissible.
The nature of mediation is such that it is without prejudice.
Rule 41A(7) requires the party who called for mediation to inform the registrar by notice that the mediation has been completed.
In the event that the party fails to deliver such notice, the suspension of time limits shall nonetheless lapse unless a Judge or court has extended it and notice has been given to all parties within 5 days of such order.
DEEMING PROVISION
Rule 41A(8) (a) states that the mediation shall be deemed to be completed within 30 days from signature of the joint minute and this is when time limit suspension shall lapse. However, where the mediation is completed before the 30 day period, parties shall deliver a notice indicating that mediation is completed. While the rule does not say so specifically, we assume that early delivery of such a notice shall also result in the lapse of time limit suspensions.
FILING OF MINUTE POST-MEDIATION
Parties to the mediation shall within 5 days issue a joint minute setting out:
- Whether full or partial settlement was reached or whether the mediation was successful or not;
- The issues upon which settlement was reached and which do not require hearing by the court;
The minute is the joint responsibility of the parties, not just the plaintiff.
Important to remember is that no tender made without prejudice shall be disclosed to the court at any time before judgment is given. Where the parties have reached settlement at mediation, Rule 41 shall apply.
WHO COVERS THE COSTS OF MEDIATION
Rule 41A(9) (a) states that unless agreed otherwise, parties to the mediation shall share the costs equally by the parties participating.
The (b) subsection of the sub-rule states that where an order for costs is considered, the court may have regard to the notices served by the parties in relation to whether they were prepared to agree to mediation or not and at this point any offers or tenders made can be brought to the attention of the court.
This sub-rule provides enormous motivation for the parties to consider mediation as an alternative dispute resolution method or to face the risk of an adverse costs order.